Page 2823 - Week 09 - Thursday, 27 September 2007
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to overcome the knowledge of law problem, where an element of the offence expressly incorporates a reference to a legislative provision;
If strict liability is applied:
the penalty should not include imprisonment;
the maximum penalty should in general be no more than 60 penalty units …
Under this scenario, with absolute liability and now strict liability attaching, there are penalties of 1,500 penalty units and imprisonment for five years, with strict liability and absolute liability attaching. It really makes a mockery of the provisions of the Human Rights Act when you can throw out legal principles because the government feel it is convenient for their prosecutions to throw away these important aspects of the rule of law. The report went on to say:
Absolute liability should apply only to:
elements of offences relating only to jurisdiction;
offences not punishable by imprisonment of more than 10 penalty units;
where inadvertent errors including those based on a mistake of effect ought to be punished;
They have set the limit at 10 penalty units, yet here we have an offence—albeit that one of them is already there, in terms of absolute liability—attracting 1,500 penalty units and five years in prison. We in the opposition believe that this is way over the top. It is not unreasonable for the prosecution, where there are employers who have done the wrong thing, to have to prove their case, to have to prove the fault elements. It should not just be assumed that the employer is guilty and then they have to make the case in defence, particularly when we are dealing with such significant penalties. It is a very important principle. My committee has commented on numerous occasions that we should not expose people to very serious penalties, involving lengthy terms of imprisonment and very substantial fines, without having to prove the elements of the case.
With respect to absolute liability, the commonwealth Attorney-General’s Department guidelines talk about it applying only to offences not punishable by imprisonment or more than 10 penalty units. Going back to the elements of offences relating only to jurisdiction, that is not the case here. We are talking about a person being required to comply with a safety duty, and that is not merely a jurisdictional question.
We think that this goes way too far. It appears to be a bit of an employer-bashing exercise by this government, in that they are imposing particularly draconian measures. Let us face it: they are measures that they would never apply to anyone else. We think that employers, like employees and everyone else in the community, are entitled to the protection of the rule of law. Where there are serious offences, they should have to be proved. The fault elements should have to be proved, not just the physical elements of those offences.
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